UPDATE: Law of
the Republic of Tajikistan - A Guide to Web Based Resources

By Oleg
Stalbovskiy & Maria Stalbovskaya

Update by
Bakhtiyor
Abdulhamidov

Bakhtiyor
Abdulhamidov
is a co-founder and partner of a leading commercial law
firm in Dushanbe, Tajikistan. Prior to law practice, he spent several years
managing a legal reform project in Tajikistan funded by a bilateral donor
agency. He studied law at the Tajik National University, and at the Central
European University.
He
is presently enrolled in a LLM
program at the Harvard Law School.

Note:
Most of the resources referred to in the present Guide are
either in Tajik and/or Russian language. English translations of laws and other
legal acts, which are available on select web-sites, in
absolute majority of cases are
outdated.

The Republic of Tajikistan is the smallest
country in Central Asia, with the total territory covering 143,000 square
kilometers. Tajikistan borders Kyrgyzstan in the north, Uzbekistan in the north
and west, Afghanistan in the south and China in the east. 93% of its territory
consists of mountains, with almost half of it located at an elevation above
3,000 meters. The main mountain systems are the Pamir-Alai mountain system and
Tien Shan Range. The capital of Tajikistan is the city of Dushanbe.

The official (state) language is Tajik
(which belongs to Indo-Iranian group and is considered a dialect of Persian
language – Persian spoken in Iran and Dari spoken in Afghanistan). From
the year of adoption of Constitution of Tajikistan in 1994, Russian
language
has an official status of the language of
interethnic
communication
. Despite the fact that it has been undermined by the new Law
“On State Language”, adopted in 2009, Russian is still used in business and social
media. Other languages informally used in Tajikistan are Uzbek, spoken in some
parts of the country, in particular in northern and western districts,
bordering Uzbekistan, as well as Shugni, Yazgulyami, Ishkashimi, Wakhi and
other
Pamiri
languages, spoken by indigenous population of
Gorno-Badakhshan Autonomous Province of Tajikistan (which constitutes half of
the territory of the country).

Tajikistan has a
population of 8,161,100, of which 2,170,900 are urban and 5,990,200 are rural
residents (26,6% and 74,4%, respectively). 79.9% of the population are of Tajik
ethnicity, 16.5% are Uzbeks, 1.1% are Russians, 1.1% Kyrgyz, and
1
,4% represent other
ethnic groups.

90% of the population
are Muslims,
with approximately
85%
Sunnis
and 5%
Shias
(
Ismailis
). The 2009 Law
on Freedom of Conscience and on Religious Organizations has recognized a
“special role” of
Khanafi
school of Sunni Islam in the national culture
and religious life of the Tajik people, while preserving Tajikistan’s status of
a secular state, by declaring freedom of religion and religious tolerance as
basic principles. In the remaining 10%, the biggest fraction is made up by the
followers of Russian Orthodox Church, with smaller fractions of followers
of various other Christian and other religious minority groups.

The earliest historic records on Tajikistan date
back to about 500 BCE, when Tajikistan was part of the Achaemenid
Empire. In the subsequent periods, it was part of ancient states of
Greco-Bactria and Sogdiana, Kushan Empire, Parthian, Hephthalite and Sasanid
Empires, Arab Caliphate (7
th
-8
th
centuries), Takhirid,
Saffarid and Samanid states (8-10 centuries), Karakhanid and Gaznevid Empires
(11
th
-12
th
centuries), Mongol Empire (13
th
century), Chagatai Khanate and Timurid dynasty (14
th
century).

Modern Tajikistan was under the rule of
the Khanate of Bukhara during the 16th century, until its collapse in
the 18
th
century, when it got divided between the Emirate of
Bukhara and Khanate of Kokand. The Emirate of
Bukhara continued to exist control the southern part of modern Tajikistan
until the early 20
th
century, while already in the second half of
the 19
th
century (around the time of the Civil War in the United
States), parts of the northern Tajikistan were conquered by the Russian
Empire.

The period from 1917 until 1924 can be
characterized as a fierce military confrontation between the
Bolsheviks
,
who came to power in Russia, and their local supporters, on the one side, and
Basmachi
movement,
led by
former
local
vassals of emirs and khans
and representatives of the
clergy, on the other side. During this period, part of Tajikistan was under
Bukhara People Soviet Republic, and from 1924 to 1929, it was part of the Uzbek
Soviet Socialist Republic, under the status of an Autonomous republic. On
October 26, 1929 the Tajik Soviet Socialistic Republic was formed as a separate
republic of the USSR.

Tajikistan gained independence from the Soviet
Union in September 1991. First presidential elections were held shortly
afterwards, however, the nation could not hold together, and the civil war
erupted in the first half of 1992. Officially, it ended on July 27, 1997, when
a Peace Accord was signed between the government and the United Tajik
Opposition.

According
to Article 1 of its 1994 Constitution, Tajikistan is a democratic and secular
state. State power is exercised on the basis of its separation (division) into
legislative, executive and judicial powers, respectively (Article 9 of the Constitution).

General
e
lections are carried out on the multi-party system, with
officially 8 registered political parties. Party activity is regulated by the
Law “On Political Parties” (
excerpts
). Following the latest
parliamentary elections in 2010, 5 parties passed the 5 per cent threshold,
namely: PDPT – 70.6%, Islamic Revival Party of Tajikistan (IRPT) –
8.2%, Communist Party of Tajikistan (CPT) – 7.0%, Agrarian Party of
Tajikistan (APT) - 5.1%, and Party of Economic Reforms of Tajikistan (PERT) -
5.03%. Accordingly, in the 63-member Majlisi namoyandagon Majlisi Oli of the
Republic of Tajikistan (lower chamber of the national Parliament), the seats
have been distributed as follows: PDPT - 54 seats, APT - 2 seats, CPT - 2
seats, PERT - 2 seats, and IRPT 2 seats (1 seat taken by an independent
self-nominee)].

The state is headed by the President, who is
elected by a direct universal vote. According to Article 65 of the Constitution,
the President, who is also the head of the executive (Government), can be
elected for a maximum of 2 terms of seven years.

For details on the organisation and competencies of
the President, the Government, the Parliament as well as the judiciary, see
Section III below.

Tajikistan is a civil
law country, and the judicial decisions are not sources of law. Since
independence of Tajikistan from the Soviet Union in September 1991 (which
itself was declared dissolved in December 1991) an effort has been to build its
legal system entirely anew, which mostly succeeded. It should be noted that
laws and other acts of the USSR were applied until the adoption of the
Tajikistan’s own new laws and other acts.

Many laws in
Tajikistan, especially the ones that are believed to play important role in the
legal system and in the economic development, have been developed with the
assistance of foreign legal experts. Some of the important laws in the commercial
and corporate fields – such as the Law “On Joint Stock Companies”, the
Law “On Pledge of Moveable Property”, the Law “On Banking Activity”, - were
developed with the assistance and advice of experts from common law countries,
under the USAID or the World Bank projects. Procedural laws, on the other hand
– such as the Civil Procedure Code and the Economic Procedure Code (which
regulates judicial procedure in commercial courts, which resolve disputes among
business entities) – were developed with the extensive inputs by lawyers
from civil law countries, specifically Germany, under the GIZ-sponsored
projects. Islamic legal principles have also found their place in the legal
system, although exclusively in the financial sphere, with the adoption of the
Law “On
Islamic Banking” in 2014.

Tajikistan is a state
based on the rule of law (Article 1 of the Constitution).
The
legal system in Tajikistan is based on the hierarchy of legal norms, which are
also divided based on the area of regulation. According to Article 7.1 of the
Law of the Republic of Tajikistan “On Legal and Normative Acts”, the legal
system of Tajikistan includes:

·
Constitution of the Republic of
Tajikistan;

·
laws of the Republic of Tajikistan,
adopted through referenda;

·
international legal acts (treaties),
recognised by Tajikistan;

·
constitutional laws;

·
codes, laws;

·
joint resolutions of the Majlisi milli
(upper house) and Majlisi namoyandagon (lower house) of Majlisi Oli (
Supreme
Council
, the Parliament) of the Republic of Tajikistan;

·
(
separate
)
resolutions
of the Majlisi milli and Majlisi namoyandagon of Majlisi Oli of the Republic of
Tajikistan
;

·
orders of the President of the
Republic of Tajikistan
;

·
resolutions of the Government of the
Republic of Tajikistan;

·
directives of the ministries
and
state committees
(
of the
Government)
;

·
resolutions of Majlises
(
councils
)
of people
’
s deputies of Gorno-Badakhshan Autonomous province, other provinces
, as well of the city of Dushanbe (capital 0f Tajikistan)
;

·
resolutions of the chairs
(
governors
)
of
Gorno-Badakhshan Autonomous province, other provinces, as well as of
Dushanbe
;

According to Article
10 of the Constitution
and Article 8 of the Law “On Legal
Normative Acts of the Republic of Tajikistan”
, international legal
treaties recognized by Tajikistan are a constituent part of the legal system.
In case of a conflict between the laws and the recognized international legal
treaties, the international legal treaties prevail. However, international
legal treaties must not contradict the Constitution.

According to Article 53.1 of the Law “On
Legal Normative Acts of the Republic of Tajikistan”, the sources of official
publication of laws, international treaties, other legal acts (
including directives of the ministries and state committees)
are
official (state-owned) newspapers (gazettes) “
Jumhuriyat
” (official press organ of
the President and Government) and “
Sadoi Mardum
” (official press organ of
the Parliament). All laws, international treaties and other legal acts must be
published in these newspapers to come into legal force in Tajikistan.

All legal acts
are adopted (promulgated) and published in Tajik language as the state
language. At the same time, texts of all legal acts are also prepared and
published in Russian language, as the language of interethnic communication.
For the purposes of official interpretation, the Tajik text controls.

Although the
Law “On Normative Legal Acts of the Republic of Tajikistan” provides for the
laws adopted through referendum, there are no such laws so far.

Currently,
there are over 300 valid laws (excluding amending laws), adopted by the
Parliament. A complete list and texts of the laws in chronological order can be
found on the official web-page of the Parliament (
Tajik
and
Russian
) and the
official web-page of the National Center for Legislation under the President of
the Republic of Tajikistan (
Tajik
and
Russian
).

It should be
noted that the laws in Tajikistan often contemplate regulations that have not
been adopted and/or properly promulgated, thereby inhibiting implementation of
such laws.

International treaties, to which
Tajikistan has become a party, are an integral part of its legal system and
pursuant to Article 10 of the Constitution, prevail over national legislation
(except for Constitution). Texts of multilateral and bilateral treaties of
Tajikistan can be found, in a systemized order, on the web-site of the
National Center for Legislation under the President of
the Republic of Tajikistan
(in Russian and Tajik only).

Executive legal acts include orders of the
President
of the Republic
of Tajikistan
,
resolutions of the Government of the
Republic of Tajikistan and directives of the ministries
and
state committees
(
of the Government).

The President issues orders on matters, referred to his competence
under Article 69 of the Constitution. A complete list of orders with texts can
be found on
the official web-page of the President (
Tajik
and
Russian
).

The Government issues resolutions mainly in cases specifically referred
to in specific laws and/or orders of the President, for the purposes of their
implementation. Unlike that of the President and/or of the Parliament, the
competence of the Government is not specified in the Constitution
.
A complete list of resolutions with texts can be found on the official
web-page of the President (
Tajik
and
Russian
).

Like resolutions of the Government, directives of the ministries and
state committees of the Government are developed and passed to provide for the
implementation rules for the laws and/or orders of the President, within the
specific area of the competence of the respective ministries and state
committees. Texts of the directives can usually be found on the web-pages of
ministries and/or state committees that have issued them (see below, under
Section III(b)ii).

According to Article 1 of the
Constitution, the Republic of Tajikistan is a sovereign, democratic, legal,
secular and unitary state. The form of government can be characterized as
semi-presidential (or super presidential, according to some classifications).

The state power is based on the principle
of its separation into legislative, executive, and judicial branches.

The supreme highest
representative and legislative body of the Republic of Tajikistan is
Majlisi
Oli (Supreme Assembly)
. It consists of two chambers:
Majlisi milli
(National Assembly) and
Majlisi namoyandagon
(Assembly of
Representatives). The first two-chamber Parliament was elected in 1999. A
joint session of Majlisi Oli (where both chambers sit together) is convened at
least twice a year.

Majlisi milli
has 33 members, of whom 25 are elected by local legislatures (majlises
of provinces, districts and Dushanbe) and 8 appointed by the President. In
addition, each former president, if so decides, can take a life sit in
Majlisi
milli
.

The powers of
Majlisi milli
include:

·
adoption of laws;

·
creation, abolition,
and change
of administrative and territorial units;

·
election of
chairs and
judges of the Constitutional Court,
the Supreme
Court and the High
Economic Court under the proposal of
the President
of Tajikistan;

·
approval of
stripping of the
immunity
of chairmen and judges
of the Constitutional

Court, the Supreme
Court and the High
Economic Court;

·
approval of appointment and removal
of the
Prosecutor General and his deputies.

Members of
Majlisi
namoyadagon
are elected for five years on the basis of direct elections.
Majlisi
namoyandagon
operates on permanent and professional basis, with an
all-chamber session held at least once a week.
Majlisi namoyandagon
has
63 members, of whom 22 are elected based on party lists and 41 - in single-seat
constituencies.

The powers of
Majlisi
namoyandagon
include
:

·
adoption of laws;

·
forming of
the central commission on elections
and carrying out of referenda;

·
proposing for national
discussion
bills on other important
state and public
questions;

The President is the head of state,
chairman of the Government, and the Commander-in Chief of the Armed Forces. The
President is elected for seven years on the basis of general elections. The
same person cannot serve more than two Presidential terms
(
counting out the
periods begins with 2006, based on constitutional amendments of 2003
). Emomali Rakhmon (formerly – Emomali Sharipovich Rakhmonov) was
re-elected as a President of Tajikistan on 1999, 2006 and 2013.
The
official
website of President of the Republic of Tajikistan
contains the
Constitution and Presidential orders (Tajik, Russian).

The Government of Tajikistan is headed by
the President as the Chairman of the Government, and consists of the Prime
Minister, the First Deputy Prime Minister, Deputy Prime Ministers,
as well
ministers and chairmen of various state committees
and agencies. The Structure of Government can be found on the web site of the
President
. As of January 2014, the Government consists of 14
ministries, 3 state committees, 13 agencies, and 5 other bodies.

The following web sites of ministries,
state committees, and agencies of the Republic of Tajikistan have some useful
legal documents (in Russian language as a rule, but sometimes in English as
well):

The local government consists of
representative and executive bodies that act within their powers, defined by
the
Constitutional Law “On Local State Power Bodies”
.
A local government is represented in provinces, cities and districts by
Majlises of people's deputies headed by a chairman, who is simultaneously a
head of local executive. Deputies of local majlises are elected for five
years.

Courts system is envisaged in Article 84
of the Constitution, and consists of
the Constitutional Court, the Supreme
Court, the Supreme Economic Court, the Military Courts, the Court of
Gorno-Badakhshan Autonomous Province, the Dushanbe city Court, regional,
district, town, and city courts, as well as economic courts of provinces,
Gorno-Badakhshan Autonomous Province and Dushanbe.

All judges in Tajikistan are appointed for
the term of 10 years, with no limits on reappointment. The courts system is
divided into two parts, based on the subject-matter competence. The so-called
courts of
general jurisdiction
consider criminal cases and
administrative cases, as well as resolve civil (including family and labour)
disputes. These courts are topped by the Supreme Court of the Republic
Tajikistan, which acts as the highest appellate court. Economic (commercial)
courts, which consider disputes arising out of or connected to economic
(business) activity between legal entities and/or sole entrepreneurs
(proprietors) and /or state institutions (government agencies), are topped by
the
High
Economic Court
. The constitutional review, including the review of
constitutionality of laws, other legal acts, as well as settlement of disputes
over issue of competence of state bodies, is carried out by the
Constitutional
Court
.

The administrati
ve
(logistical) support, as well as the organisation of the functioning of courts,
selection and training of candidates for the position of judges (judicial
trainees) is carried by a special body, reporting to and organised by the
President – the
Council of Justice
. The competence of
the Council of Justice is defined in the Constitutional Law “On Courts”.

The bodies of state prosecution carry out
supervision of exact and uniform application of laws on the territory of
Tajikistan. The system of the prosecution bodies is centralized and headed by
the Prosecutor General (General Prosecutor’s Office). The Prosecutor General
reports to Majlisi Oli and President of Tajikistan and is appointed for a term
of five years. Activities, powers, and the organization of the Office of the
Prosecutor are regulated by the
Constitutional Law "
On [State]
Prosecution Bodies of the Republic of Tajikistan
"
(2005,
as amended; Russian)